Mann’s Defamation Suit Survives Anti-SLAPP Motion

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann’s global warming research. In response, the defendants filed a special motion to dismiss under D.C.’s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia’s Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann’s “nature trick” of adding in real temperatures for the last twenty years and from 1961 to “hide the decline.” Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann’s “nature trick” was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann’s research might deviate from accepted norms. The committee interviewed an MIT professor who was critical of Mann’s work and later expressed dismay with the scope of the investigation and the committee’s analysis of the CRU emails.

At the same time, in response to pressure from the National Review, Steyn and others, the EPA investigated Mann and found no evidence of scientific misconduct. The National Science Foundation also investigated Mann’s work and found that Penn State had not adequately reviewed the allegations and failed to interview critics of Mann’s work

Two years later, Penn State was in headlines due to the Jerry Sandusky scandal. FBI Director Louis Freeh concluded that the university had failed to properly investigate allegations of misconduct when they arose and suggested that it should undertake a thorough and honest review of its culture which seemed to value the avoidance of bad publicity and its consequences above all else.

The National Review seized on the Sandusky scandal and published Steyn’s article “Football and Hockey” on its website in a section called “The Corner.” The piece contained an excerpt from and a link to a post by Rand Simberg on OpenMarket.org entitled “The Other Scandal in Unhappy Valley” which compared the Sandusky scandal and the university’s failure to handle the matter properly with its investigation into Mann’s work. Steyn agreed that Simberg had a point but admitted he might not have “extended the metaphor all the way into the locker-room showers” with quite the zeal Simberg did. Steyn also stated that Mann was the man behind the “fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus,” and he concluded by noting the similarities between Penn State’s investigation of Sandusky and Mann and questioning its handling of both matters.

Mann demanded a retraction and apology for the accusations of academic fraud. In response, the National Review asserted that the term “fraudulent” was used to mean “intellectually bogus and wrong” rather than criminally fraudulent.

Mann sued in D.C. Superior Court, alleging libel and intentional infliction of emotional distress against the National Review, Steyn, Simberg and the owner of OpenMarket.com, Competitive Enterprise Institute. His complaint was based on the statements that (1) Mann had engaged in data manipulation and scientific misconduct and was the “poster-boy of the corrupt and disgraced climate science echo chamber,” (2) Mann was the man behind the “fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus,” and (3) Mann’s work was intellectually bogus.

The National Review and Steyn moved to dismiss under both D.C.’s Anti-SLAPP Act and Federal Rule of Civil Procedure 12(b)(6). The defendants argued that their comments are protected by the First Amendment and that the Anti-SLAPP Act applies because Mann’s claims stem from statements made in a public forum that discusses issues of public interest, i.e., climate change and global warming. Mann asserted that the Anti-SLAPP Act was enacted to deter large private interests from bringing meritless suits to deter common citizens from exercising their political or legal rights and was not intended to apply to cases such as this. The court found that because the defendants’ comments were made with respect to climate issues which are environmental issues and issues of public interest, and were made in publications that were available to the public, the Anti-SLAPP Act applies.

The Anti-SLAPP Act provides that if a party filing a special motion to dismiss makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the court will grant the motion unless the responding party shows that the claim is “likely to succeed on the merits.” The parties disagreed on the level of proof this standard requires. The defendants asserted that “likely” poses a higher burden than “probability,” which is the term used in the corresponding California statue upon which the D.C. statute is based. Mann argued that there is no difference between “likely” and probability.” The court turned to Black’s Law Dictionary which defines the “likelihood of success on the merits test” in the context of a preliminary injunction as requiring the litigant to show “a reasonable probability of success in the litigation.” The California statute requires the plaintiff to show a “probability of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff’s favor.” The court held that the standard is similar to that used on a motion for judgment as a matter of law and that Mann must present a sufficient legal basis for his claims in order to survive the anti-SLAPP motion.

The defendants argued that Mann would be unable to make a prima facie case for libel because he could not prove the actual malice required where plaintiff is a public figure. They also argued that Mann would be unable to prove the falsity of the statements because the statements were ones of opinion. Mann countered that he could demonstrate actual malice by showing that the defendants entertained serious doubts as to the truth of the statements or acted with a high degree of awareness that the statements were probably false. He argued that the statements were false and defamatory per se and that the defendants made them with knowledge of their falsity or with reckless disregard of the truth. He contended that whether he engaged in fraud is verifiable by analyzing the elements of fraud or considering the investigations conducted regarding his research.

On the issue of malice, the court found that sufficient evidence existed to show at least reckless disregard of truth or falsity, as Mann had been investigated several times, at least once due to the defendants’ accusations, and his research has been found to be accurate. The court held that where the defendants consistently claim that Mann’s work is inaccurate despite being proven accurate, then there is a strong probability that the defendants disregarded the falsity of their statements and did so with reckless disregard. Although the evidence was not yet sufficient to show clear and convincing evidence of actual malice, the court found sufficient evidence to necessitate further discovery on the matter.

Regarding the fact vs. opinion question, the court noted that opinions may be actionable if they imply a provably false fact or rely upon stated facts that are provably false. To determine whether a statement is actionable opinion, a court must examine the context of the statement. The court found that the statements at issue here questioned facts rather than simply inviting readers to ask questions. The court held that, given the definition of fraud and the common readers’ interpretation of the words “fraud” and “fraudulent,” the statements were more than brutally honest commentary. The court held that the assertions of fraud rely upon facts that are provably false in light of the fact that Mann has been investigated and his research and conclusions determined to be sound. Evidence indicated that the defendants’ statements were not pure opinion but rather were statements based on provably false facts.

The defendants also argued that the statements were rhetorical hyperbole – witty and obvious exaggeration– which is protected under the First Amendment, and that the statements criticized Mann’s work and ideas rather than Mann himself and thus cannot be defamatory. The court found that, when considered in the context of all of the comments and accusations made over the years and the “constant” requests for investigations of Mann’s work, the statements appear more as factual assertions.

Finally, the defendants argued that their statements were protected by D.C.’s fair comment privilege, which protects opinions based on facts that are well known to readers. To take advantage of this privilege, a defendant must show that the publication was fair and accurate and that the publication properly attributed the statement to the official source. Here, the court found that the accusations of fraud were provably false as several reputable bodies had found his work sound. Thus, the court held that the fair comment privilege did not apply.

For these reasons, the court denied the motions to dismiss and lifted the discovery stay.

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